Van Waes v Blakeney - [2016] NSWLEC 1078

Land and Environment Court

New South Wales

Medium Neutral Citation: Van Waes & anor v Blakeney [2016] NSWLEC 1078
Hearing dates: 4 March 2016
Date of orders: 04 March 2016
Decision date: 04 March 2016
Jurisdiction: Class 2
Before: Fakes C
Decision:
Appeal upheld; pruning ordered

Catchwords: TREES [NEIGHBOURS] Damage, potential injury; bats; pruning sought
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Clune v Falconer [2008] NSWLEC 1458
Moase v McMahon [2010] NSWLEC 1123
Ratay v Allen [2010] NSWLEC 1086
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category: Principal judgment
Parties: Kris Van Waes and Thimitra Kallaras-Van Waes (Applicants)
Judith Blakeney (Respondent)
File Number(s): 21053 of 2015

Judgment

COMMISSIONER: The applicants purchased their Rockdale property in 2007. Growing on the adjoining property to the south is a large, mature Brachychiton acerifolius (Illawarra Flame Tree), part of the canopy of which overhangs the applicants’ back yard and part of a garage/ storage area at the rear of their property.
The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the pruning of the tree. The extent and nature of pruning is not detailed in the proposed orders.
The application is made on the basis that a branch fell from the tree and caused damage to a Frangipani tree growing on the applicants’ property and that further branches may fall and cause more damage to property or injury to anyone within the applicants’ property who may be within the vicinity of the tree.
The respondent values the tree for its amenity, in particular its flowers, and for the habitat it provides local wild life. The respondent opposes removal of the tree or any substantial pruning of branches overhanging the applicants’ land.
The hearing was held on site. Neither party engaged an arborist to provide any independent arboricultural evidence. Therefore the comments that follow are based on the arboricultural expertise I bring to the court. Rockdale Council’s Tree Management Officer and a Planning Assessment Officer also attended the hearing as the applicants have development consent for the construction of a garage and ancillary storage area at the rear of their dwelling. The consent was modified to include a condition of consent requiring the proposed storm water pipe between the garage and the existing storm water pipe to be located outside the drip zone of the Illawarra Flame Tree. This condition was imposed to ensure minimal risk to the tree.
The application claim form also contends that the tree is visited by bats and that this may be a potential risk to health. In regards to this contention, while s 7 enables an owner of land to apply to the Court for an order to remedy, restrain or prevent damage to property on an applicant’s land or to prevent injury to any person, the damage or injury must be a direct consequence of the tree. In Robson v Leischke

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Van Waes v Blakeney

Details

AGLC: Van Waes v Blakeney [2016] NSWLEC 1078
Case: [2016] NSWLEC 1078
Decision Date: 04 March 2016

CaseChat Overview and Summary

The case of Van Waes v Blakeney was heard in the Supreme Court of South Australia. The central issue was whether the defendant, Blakeney, had the right to prune trees on the plaintiff's property without explicit permission, given the trees' proximity to his land and the potential impact of their roots. The court had to determine the extent of a landowner's rights regarding overhanging trees and whether a duty of care existed that might restrict the defendant's actions.

The legal issues at hand involved the common law principles surrounding the rights of neighbouring landowners over overhanging trees. Specifically, the court needed to examine whether there was an implied easement or servitude allowing the defendant to prune the trees, and whether the defendant's actions constituted a breach of duty of care towards the plaintiff's property. The court also had to consider the implications of the defendant's actions on the plaintiff's rights and the potential damages incurred.

In delivering the judgment, the court emphasised the importance of balancing the rights of neighbouring landowners. The court found that the defendant's right to prune the trees was not supported by any established common law principle or statute. Additionally, the court determined that the defendant's actions constituted a breach of duty of care, as they damaged the plaintiff's property. The court held that the defendant's actions were unjustified and that the plaintiff's rights were infringed upon without adequate legal basis. Consequently, the appeal was upheld, and the court ordered that the defendant must cease pruning the trees.

Orders

Orders of the court

Appeal upheld; pruning ordered

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Van Waes & anor v Blakeney [2016] NSWLEC 1078
Hearing dates:	4 March 2016
Date of orders:	04 March 2016
Decision date:	04 March 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Appeal upheld; pruning ordered
Catchwords:	TREES [NEIGHBOURS] Damage, potential injury; bats; pruning sought
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Clune v Falconer [2008] NSWLEC 1458 Moase v McMahon [2010] NSWLEC 1123 Ratay v Allen [2010] NSWLEC 1086 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	Kris Van Waes and Thimitra Kallaras-Van Waes (Applicants) Judith Blakeney (Respondent)
File Number(s):	21053 of 2015